After a hearing respecting the forfeiture petition, ORS
167.347(2), (5) the court found that the petitioners had established
probable cause to believe that the animals had been neglected in
violation of ORS 167.330, and it ordered the animals forfeited
unless defendant posted a $2,700 bond (which the court found to
be the amount expended by the humane society in caring for the
animals from the date of impoundment until the date of the
order). (6) When defendant failed to post the bond, the trial court
entered an order of forfeiture. Thereafter, defendant was tried
for the second time on the criminal animal-neglect charges. He
was acquitted on all counts. The acquittals had no effect on the
forfeiture order.

After his acquittal, defendant filed a timely notice of
appeal from the forfeiture order, attempting to challenge it on
various constitutional grounds. However, the state argued in its
respondent's brief in the Court of Appeals that the forfeiture
order was unappealable and, specifically, that the jurisdictional
statute on which defendant relied, ORS 138.053(1), was
inapplicable, because it does not provide for an appeal from an
acquittal.

Defendant contends that the Court of Appeals erred in
determining that it was without jurisdiction to consider his
appeal. Defendant acknowledges that the right to appeal is
purely statutory, State v. K.P., 324 Or 1, 4, 921 P2d 380 (1996),
but argues that the order at issue is appealable under one or
both of the statutes that the Court of Appeals considered and
dismissed as inapplicable.

Because the case was brought in the criminal
proceeding, we first consider defendant's arguments with respect
to ORS 138.053(1), which is a part of the criminal procedure
code. That statutes provides:

"This section establishes the judgments and orders
that are subject to the appeal provisions and to the
limitations on review under ORS 138.040 and 138.050. A
judgment or order of a court, if the order is imposed
after judgment, is subject to ORS 138.040 [which
provides for appeal by a defendant] * * * if this
disposition includes any of the following:

"(a) Imposes a sentence on conviction."

"(b) Suspends imposition or execution of any part
of a sentence.

"(c) Extends a period of probation.

"(d) Imposes or modifies a condition of probation
or of sentence suspension.

The issue need not detain us long. As noted, the Court of
Appeals concluded that ORS 138.053(1) does not authorize an
appeal from an acquittal. It reasoned:

"ORS 138.053(1) provides that a judgment or order in a
criminal case is appealable only if it imposes a
sentence on conviction, suspends imposition or
execution of any part of a sentence, or makes a
decision relating to probation. None of those events
occurred here or could have occurred here or could have
occurred here. There can be no sentence, probation or
other sanction after an acquittal."

Branstetter, 166 Or at 289-90 (emphasis in original). We agree.

We turn to defendant's alternative theory -- that the
forfeiture order arose out of a "special statutory proceeding"
and therefore is appealable under ORS 19.205(4). As noted, the
Court of Appeals rejected that theory on the basis of case law
that the Court of Appeals read to require that a special
statutory proceeding cannot be a part of but, instead, must be
separate from, any other proceeding. The Court of Appeals
concluded that a forfeiture proceeding could not fulfill the
separateness requirement, because the filing direction in ORS
167.347 expressly makes the proceeding part of another action.

In arguing the contrary view, defendant adopts the
position articulated by the Court of Appeals' dissent -- that it
is erroneous to conclude that, simply because ORS 167.347 permits
a petition for forfeiture be filed in such action, the forfeiture
proceeding provided in that statute is part of that action.
Defendant (and the Court of Appeals' dissent) suggest that the
fact that the forfeiture proceeding is essentially civil in
nature, the fact that neither the outcome of the forfeiture
proceeding nor the outcome of the criminal action has any effect
on the other proceeding, the fact that there are differing
standards of proof required for forfeiture as opposed to
conviction in the criminal action, and the fact that the parties
are different in the forfeiture proceeding and the civil action,
all point to a conclusion that the forfeiture proceeding is
separate from the criminal action and is a special statutory
proceeding for purposes of the appellate review statutes.

The parties agree that, for purposes of ORS 19.205(4),
a "special statutory proceeding" must be "separate" from any
other proceeding. In fact, this court's case law establishes
that "separateness" in some sense is a necessary attribute of a
special statutory proceeding. See, e.g., State v. Threet, 294 Or
1, 5, 653 P2d 960 (1982) (illustrating requirement). The parties
part company, however, over how separateness is to be assessed.
The state appears to argue that formal separateness, i.e.,
separate case names and numbers, is required. Consistent with
that formalistic approach, the state suggests that the express
authorization in ORS 167.347 that a forfeiture petition may be
filed "in the criminal action" establishes the legislature's
intent to create integrated, rather than separate, proceedings
for all purposes. Defendant advocates for a more functional
approach to the problem -- one that looks at identity of issues
and parties and at whether and how the proceeding at issue
affects and is affected by the related proceeding.

We begin by noting that the state's approach is
undermined significantly by the fact that, although ORS 167.347
permits a forfeiture proceeding to be filed before the outcome of
the criminal case, it does not require such a filing.
Furthermore, a separate statute, ORS 167.350, authorizes
forfeiture "in addition to * * * any other sentence," when a
defendant is found guilty of the underlying criminal act. We now
turn to the cases that discuss and apply the requirement that
special statutory proceedings be separate from every other
proceeding. We begin with Threet, the case in which this court
first articulated the separateness requirement.

The question in Threet was whether a circuit court
order compelling witnesses to appear and testify before a grand
jury was appealable under ORS 19.205(4) (10) as the product of a
"special statutory proceeding." Based on the historical use of
that term in the cases and statutes, this court held that
"separateness" is a necessary attribute of a special statutory
proceeding and suggested that a reason for that requirement is
that it avoids disruption of other judicial proceedings. Threet,
294 Or at 5. Applying the principles that it derived from
earlier cases, the Threet court concluded that proceedings to
compel grand jury testimony under ORS 136.617-.619 were not
special statutory proceedings. The court specifically noted that
such proceedings "only come into play when a witness refuses to
testify or produce evidence on the ground of self-incrimination
'[i]n any criminal proceeding before a court of record or in any
proceeding before a grand jury.'" Id. at 7. The Threet court
also noted that allowing appeals from such orders would disrupt
and, at times, even abort grand jury proceedings. Id.

Neither is the actual holding in Threet inconsistent
with defendant's position in the present case. In Threet, the
proceeding to decide the motion to compel testimony arose out of,
and purported to resolve, a potentially problematic event in the
criminal or grand jury proceeding, i.e., a witness's refusal to
testify. There was a strong dependent relationship between the
subject matter of the two proceedings and a strong logical reason
for viewing them as inseparable for purposes of appeal.

By contrast, there is no necessary connection between
the content of a forfeiture proceeding under ORS 167.347 and the
criminal action in which, by statute, the forfeiture petition may
be filed. Although a forfeiture proceeding under ORS 167.347
formally depends on a criminal action for its existence in that
it can go forward only if a criminal action of a specified sort
is pending, that kind of forfeiture proceeding does not arise out
of the criminal action, resolve any controversy in the criminal
action, or otherwise affect or depend on the substance of the
criminal action. Threet does not control this case.

The same is true of the other major case that deals
with the separateness requirement announced in Threet, Garganese
v. Dept. of Justice, 318 Or 181, 864 P2d 364 (1993). Garganese
involved the Oregon Unlawful Trade Practices Act, ORS 646.605 et
seq. The court there considered whether a proceeding under ORS
646.618(2) to challenge an investigative demand issued by the
Department of Justice (department) was a "special statutory
proceeding" within the meaning of ORS 19.205(4). The department
argued that the proceeding was not sufficiently "separate and
distinct" to qualify as a special statutory proceeding, because
it was only a constituent part of a trade practices enforcement
action under a related statute, ORS 646.632.

In analyzing the problem, the court noted that the
department may serve investigative demands on persons other than
those whom they suspect of violating the Unlawful Trade Practice
Act and that challenges by such persons under ORS 646.618(2)
necessarily would be separate and distinct from an enforcement
proceeding against a suspect under ORS 646.632. The court then
stated:

"Although the recipient of an investigate demand in
many cases will be the target of the investigation,
because proceedings under ORS 646.618(2) and 646.632 do
not necessarily involve the same parties, that is not
always the case under the statutory scheme. Because
the existence of a proceeding under one of those
statutes is not dependent on the existence of a
proceeding under the other, we conclude that the two
proceedings are separate and distinct."

Id. at 187. The court acknowledged that allowing rulings on
investigative demands to be appealed might delay an enforcement
action under ORS 646.632 when the prosecutor is using the demand
to determine whether there is probable cause to proceed, but
concluded that that fact does not preclude jurisdiction under ORS
19.205(4), because the appeal would not disrupt a judicial
proceeding that actually was in progress. Id. at 187-88.

Garganese does not aid the state here. There was no
question that the investigative and enforcement proceedings at
issue in Garganesecould be distinct. Instead, the issue was
whether the investigative demand proceedings could be deemed to
be "separate and distinct," when they generally had a strong
functional connection to a larger enforcement action under ORS
646.632. However, the Garganese court concluded that the
proceedings there were "separate and distinct," because there was
no necessary substantive connection between them (they might, in
fact, involve different parties). The court had no occasion to
consider whether the result necessarily would be different when
two proceedings were substantively unconnected, but nevertheless
were linked by, for example, a common case number.

In fact, we have been able to identify only one case
from this court that appears to deal with circumstances analogous
to those presented in this case. In State v. K.P., a petitioner
who had served a probationary sentence after a conviction on a
charge of second-degree theft sought an order from the court that
had entered her conviction setting aside the conviction and
sealing the records that related to it, as authorized by ORS
137.225. The trial court granted the requested relief, but
expressly excluded police investigation reports from the list of
records to be sealed. The petitioner appealed, arguing that the
court was required to seal the police investigative reports along
with the other records. K.P., 324 Or at 3-4.

When the case reached this court, the court first
considered a threshold procedural issue, viz., whether the order
setting aside the conviction and sealing the records was
appealable. After considering and rejecting other possible
statutory bases for appeal, the K.P. court concluded that the
order was appealable under ORS 19.205(4). Id. at 6.

Although the K.P. opinion offered no explanation of its
jurisdictional conclusion, that conclusion nonetheless is
relevant to the present controversy, because of certain parallel
factual circumstances. The petitioner in K.P. had filed her
motion to set aside and seal records of her conviction under the
same case name and numbers as the criminal action, and her motion
was treated both by the trial court and this court as an
extension of that criminal action. Despite those facts, this
court had no difficulty in concluding that the process for
sealing the records was a "special statutory proceeding" and,
presumably, that it was separate and distinct from the criminal
action for purposes of ORS 19.205(4). K.P. thus indicates that
the fact that a proceeding formally is part of another proceeding
in the sense that it shares a common case number does not prevent
such a proceeding from being "separate from any other proceeding"
for purposes of ORS 19.205(4).

In the opinion below, the majority suggested that K.P.
is distinguishable from the present case, because the K.P. court
had concluded that the record-sealing proceeding in that case was
a new proceeding and not part of the criminal proceeding.
Branstetter, 166 Or App at 293. In the view of the Court of
Appeals' majority, it would be impossible for a court to draw a
similar conclusion with respect to the forfeiture proceeding at
issue in this case, because the legislature expressly made the
forfeiture proceeding part of a criminal action by requiring that
the petition for forfeiture be filed in the criminal action.

At bottom, the state's argument rests entirely on the
fact that ORS 167.347 provides that an animal care agency's
petition to forfeit an animal that has been impounded pending a
criminal action may be filed "in the criminal action." The state
argues -- as it must -- that that phrase, by itself, establishes
a legislative intent that the forfeiture proceeding be treated as
part of the criminal action for all purposes.

The phrase does not stand by itself, however. The
statutory context clearly demonstrates that the forfeiture
proceedings and the criminal action are not of a piece. We note
specifically that ORS 167.347(3) sets out a burden of proof
(probable cause) that would be incongruous (if not
unconstitutional) as the legal standard for finding against a
defendant in a criminal action. The participation as parties by
entities other than the state, such as county animal shelters and
other animal care agencies, is equally incompatible with the
criminal proceedings. We think that it is clear from the wording
of ORS 167.347 and its statutory context that the legislature did
not consciously intend that a forfeiture proceeding under ORS
167.347 be deemed to be "part" of the criminal action. We
conclude, as the court did in K.P., that, despite a shared case
name and number, the proceeding at issue is sufficiently separate
and distinct from the criminal action to which it relates to
qualify as a special statutory proceeding for purposes of ORS
19.205(4).

The opinion in the Court of Appeals raises one
additional issue that we address. In a footnote, the Court of
Appeals majority suggested that allowing forfeiture orders to be
appealed as special statutory proceedings was undesirable,
because it could deprive trial courts of jurisdiction to try the
criminal cases in which the forfeiture proceeding occurs:

"If defendant were entitled under ORS 19.205(4) to
appeal from the order that forfeited his interest in
the animals, he would file his notice of appeal in his
criminal case, as he did here, because that is the only
case in which it could be filed. If he had done that
before his second trial on the animal neglect charges,
the filing of the notice would have deprived the trial
court of jurisdiction to conduct that trial. See,
e.g., ORS 19.270(1); ORS 138.083; Macy v. Blatchford,
154 Or App 313, 324, 961 P2d 873, rev allowed 328 Or
194 (1998)."

Branstetter, 166 Or App at 295 n 5.

We disagree with that assessment. ORS 19.270(1), the
first statute cited by the Court of Appeals, provides that "[t]he
Supreme Court or the Court of Appeals has jurisdiction of the
cause when the notice of appeal has been served and filed."
(Emphasis added). The "cause" is not always the entire case.
SeeState ex rel Gattman v. Abraham, 302 Or 301, 311, 729 P2d 560
(1986) ("cause" was chosen by legislature because "it has a broad
meaning and may include a case or proceeding or any part thereof
depending upon the circumstances"). As the court there stated:

"ORS 19.033(1) [now ORS 19.270(1)] means that the
appellate court has jurisdiction of the issue or matter
on appeal, be it a case, action at law, suit in equity,
cause of action, cause of suit, proceeding, or claim
for relief. The purpose of the statute is to give the
appellate court jurisdiction of the issue or subject
matter of the appeal to the exclusion of the lower
court except as provided in the statute. It was not
the intention to oust the trial court of jurisdiction
of those parts of the litigation which are not directly
involved in the appeal."

"If there is probable cause to believe that any
animal is being subjected to treatment in violation of
ORS 167.315 to 167.340, a peace officer, after
obtaining a search warrant in the manner authorized by
law, may enter the premises where the animal is being
held, provide food and water and impound such animal."

"A court may order an animal impounded under
subsection (2) of this section to be held at any animal
care facility in the state. A facility receiving the
animal shall provide adequate food and water and may
provide veterinary care."

"If any animal is impounded pursuant to ORS
167.345(2) and is being held by a county animal shelter
or other animal care agency pending outcome of criminal
action charging a violation of ORS 167.310 to 167.340,
prior to final disposition of the criminal charge, the
county or other animal care agency may file a petition
in the criminal action requesting that the court issue
an order forfeiting the animal to the county or other
animal care agency prior to final disposition of the
criminal charge. The petitioner shall serve a true
copy of the petition upon the defendant and the
district attorney."

"Upon receipt of a petition pursuant to subsection
(1) of this section, the court shall set a hearing on
the petition. The hearing shall be conducted within 14
days of the filing of the petition, or as soon as
practicable."

6. That standard, and the bond requirement, are set out in
ORS 167.347(3)(a), which provides:

"At a hearing conducted pursuant to subsection (2)
of this section, the petitioner shall have the burden
of establishing probable cause to believe that the
animal was subjected to abuse, neglect or abandonment
in violation of ORS 167.310 to 167.340. If the court
finds that probable cause exists, the court shall order
immediate forfeiture of the animal to the petitioner,
unless the defendant, within 72 hours of the hearing,
posts a security deposit or bond with the court clerk
in an amount determined by the court to be sufficient
to repay all reasonable costs incurred, and anticipated
to be incurred, by the petitioner in caring for the
animal from the date of initial impoundment to the date
of trial."

"An appeal may be taken from the circuit court in
any special statutory proceeding under the same
conditions, in the same manner and with like effect as
from a judgment, decree or order entered in an action
or suit, unless such appeal is expressly prohibited by
the law authorizing such special statutory proceeding."

8. Judge Edmonds dissented. He would have held that the
forfeiture proceeding provided at ORS 167.347 is a separate
statutory proceeding and that the forfeiture order in this case
is appealable under ORS 19.205(4). Branstetter, 166 Or App at
297-306 (Edmonds, J., dissenting).

10. The statute at the time of the Threet decision and
several of the other decisions discussed in this opinion was
numbered ORS 19.010(4), but was in all material respects the same
as its present version. We refer to the present version of the
statute throughout this opinion.

12. When a defendant is convicted, forfeiture may be made a
part of the sentence. ORS 167.350. As such, it could be
appealed under ORS 138.040. The state acknowledges that, given
that fact, one would expect a parallel right of appeal for
defendants who are acquitted. The state suggests, however, that
the legislature's failure to so provide was a drafting oversight,
but one that this court has no authority to correct.

13. We recognize that, despite its conclusion that it
lacked jurisdiction to decide the merits of defendant's appeal,
the Court of Appeals' majority "respond[ed] briefly" to
defendant's arguments on the merits. Branstetter, 166 Or App at
296. But those observations were dicta; whether the Court of
Appeals will adopt them or take some other view is a matter for
that court to decide.